| People v Lester |
| 2011 NY Slip Op 03466 [83 AD3d 1578] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jermaine T.Lester, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedNovember 19, 2007. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of assault inthe second degree (Penal Law § 120.05 [2]), defendant contends that County Court erred inlimiting his cross-examination of a prosecution witness. Defendant failed to preserve thatcontention for our review (see People v George, 67 NY2d 817, 818-819 [1986];People v Rookey, 292 AD2d 783 [2002], lv denied 98 NY2d 701 [2002]), and inany event it is without merit. "It is well settled that [t]he scope of cross-examination is within thesound discretion of the trial court" (People v Bryant, 73 AD3d 1442, 1443 [2010], lv denied 15NY3d 850 [2010] [internal quotation marks omitted]). Here, the court did not abuse its discretionbecause there was no good-faith basis for the question at issue (see People v Baker, 294AD2d 888, 889 [2002], lv denied 98 NY2d 708 [2002]) and, moreover, the court's refusalto allow defendant to ask the prosecution witness that single question cannot be said to haveaffected the outcome of the trial (see Bryant, 73 AD3d at 1443).
We further reject defendant's contention that the court erred in permitting an investigatingofficer to testify concerning an out-of-court statement made by an unidentified witness. Thatout-of-court statement was properly admitted because it was offered "not for [its] truth, but forthe fact that [it was] made" (People v Mastin, 261 AD2d 892, 894 [1999], lvdenied 93 NY2d 1022 [1999]). As the court properly explained in its limiting instruction tothe jury, the testimony of the investigating officer that is challenged by defendant was admitted"for the 'nonhearsay purpose of completing the narrative of events and explaining police actions'" (People v Vazquez, 28 AD3d1100, 1101 [2006], lv denied 9 NY3d 965 [2007]; see People v Tosca, 98NY2d 660 [2002]). In any event, any error with respect to the admission of that testimony isharmless (see Vazquez, 28 AD3d at 1101). Present—Scudder, P.J., Fahey, Carni,Green and Gorski, JJ.